Academic
sexual harassment policies are typically “problematic,” says law professor
Principles and people: Reflections on national workshop on state
Committee A activities
by Ruth Caldwell, Iowa Committee A
Committee A Checklist
From the President, Warren Zemke
Minnesota vote expected in February
AAUP President will address April 5
conference meeting in Iowa Cityp
Academic sexual harassment policies are typically “problematic,” says law professor
According to Linda Fisher, the sexual harassment policies being implemented at most colleges and universities are “vague, over-broad, and deficient in providing sufficient warning of what behavior is proscribed.” Fisher, a law professor, AAUP activist, and former civil rights attorney, spoke at the fall meeting of Iowa AAUP, which was held October 5 at Iowa State University in Ames.
Fisher, the keynote speaker, pointed out that colleges and universities formulating sexual harassment polices have routinely adopted language recommended by the Equal Employment Opportunity Commission, including the prohibition of “conduct of a sexual nature” that “has the purpose or effect of . . . creating an intimidating, hostile, or offensive . . . environment.”
Unfortunately, said Fisher, the EEOC guidelines were not intended to apply to the academic setting. Because of its vagueness, the “hostile environment” element of the definition has been especially difficult to apply in an academic context. Although the courts have “constrained” hostile environment claims—encouraging external settlements or simply throwing them out—those implementing college and university sexual harassment policies have tended to permit a very broad and subjective construction of hostile environment, to the extent that a complainant’s feeling offended or uncomfortable has been sufficient “evidence” to substantiate a charge of harassment.
According to Fisher, a broad interpretation of hostile environment easily results in the restriction of First Amendment rights to free speech and academic freedom.
She related how the AAUP was forced to confront these issues when members realized that the Association’s 1990 sexual harassment policy recommendations, which were based on the EEOC guidelines, contradicted the Association’s longstanding position on academic freedom, most recently articulated in its 1992 statement On Freedom of Expression and Campus Speech Codes.
As a result, Fisher said, AAUP committees A (on Academic Freedom and Tenure) and W (on the Status of Women in the Profession) began the revisions that resulted in the latest version of the AAUP’s sexual harassment policy, approved by the Association in 1995. (Fisher is a member of Committee W and served as a legal consultant to Committee A.)
According to Fisher, the new AAUP policy achieves a better balance between individual freedom and equality by clearly proscribing discrimination based on sex while being specific about what kinds of behavior constitutes such discrimination.
The AAUP policy definition does not use the term
“hostile environment.” Instead, it states that sexually harassing speech must be
“targeted” and that this speech must be either “abusive,”
“severely humiliating,” or persistent in the face of repeated objections.
Untargeted speech that constitutes sexual harassment must be “reasonably regarded as
offensive” and must “substantially impair the academic or work opportunity of
students colleagues, or co-workers.” Further-more, “If [the offending speech or
conduct] takes place in the teaching context, it must also be persistent, pervasive, and
not germane to the subject matter.”
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Principles
and people: Reflections on national workshop on state Committee A activities
by Ruth Caldwell
Iowa Committee A
Professor Caldwell (French, Luther College) represented the Iowa Conference at the first national workshop for state committee A members, held in Washington, D.C., on October 12. Her reflections on that meeting follow.
"Principles and people" became the theme of the day-long workshop conducted by national AAUP staff on October 12, 1996, in Washington D.C. In attendance were 40 people, including 6 staff members and representatives from 25 state conferences, with a nearly equal mix of colleges and universities, public and private.
The Iowa conference can take pride in the fact that it was mentioned in Committee A staff member Jonathan Knight's opening remarks. Indeed, it appears that the first AAUP state conference meeting in history was held in Iowa—in 1928. Although at the time this meeting did not call itself a "state conference," it issued a statement that has proven to be prophetic of the relationship between the national AAUP and the state conferences: “If the association is to develop and express the ethics of the profession, it must include the majority of those eligible for membership."
But what happens if there is a perceived split between those who express these ethical principles and those who are affected by them? Here, the word ”perceived" is important, because according to AAUP's tenets, there is no such split. This is why one need not even be a member of AAUP in order to benefit from the Association’s advice and assistance. Nevertheless, a critical mass of members is needed to give credibility to the Association. Furthermore, the national Commit-tee A has sometimes been at odds with various state-level committee A’s.
The differences are clear. The national office concerns itself with general principles of the profession, with ideas and issues. On the local level, there are real people with real problems and individual conflicts. The national office's authority consists of moral persuasion. On the local level, people want "clout" in order to resolve specific problems, some of which may be relatively minor. However, the staff in Washington, D.C., reserves the right to speak for the Association. Therefore, on the local level, chapters and state conferences must figure out how to represent the Association without speaking for it.
These differences were underlying most of the discussion of the agenda for the day, which began with statements on principles (the Washington office) and national case work (Jonathan Knight, Bob Kreiser, Pat Shaw), passed through an examination of conference case work (Don Wagner, Georgia conference), and ended with a general discussion of hypothetical cases, of which there was only time to focus on one case, which involved sexual harassment.
Concerning conference case work, there was a rather long exchange on a point on Don Wagner's "Committee A Checklist" (see box on page 5). The point in question was number 5 on the list, which reads as follows: “Remember that AAUP defends policies and principles, not individuals. Individual cases matter to AAUP only insofar as they implicate the policies we recommend. Our policies do not cover all conceivable circumstances.”
Some people thought that the wording, particularly in the second sentence, was unfortunate. It was thought to be a "turn-off," to prospective members, conveying the attitude of not caring about individual people. Indeed, it was reported that many people on the local level have not been able to understand why AAUP has not been able to take up more individual causes. It was pointed out that these individuals may view AAUP as a law firm and are disappointed to learn that the organization defends colleagues through the moral authority of its principles.
It was also pointed out that, in order for this moral authority to be effective, the Association needs to be judicious in choosing cases where it can contribute to the defense in a credible way. Arguing on the basis of principle, the AAUP must maintain an objective stance. Otherwise, as some university defendants have rightly observed, the Association enters the untenable position of being both party and judge to a law suit.
Thus, the national office must steer a course between encouraging local mediation and discouraging local advocacy. The trick to being an effective committee A member on the conference or chapter level is to be an understanding listener while evaluating the situations for implications of AAUP principles—keeping in mind that "AAUP principles trump local rules" (Knight).
A series of caveats follow: know the Redbook thoroughly; don't make a judgment about a case; be a fact finder; call Washington if in doubt; keep in mind we are one AAUP organization and should speak with one voice; ask what the aggrieved party wants you to do and don't do anything without the aggrieved party's permission; be careful about confidentiality (including what should be published in the conference newsletter); explore all avenues of redress; and be a mediator (in passing, I note that the Iowa conference has been relatively successful in mediation).
"People advocates,” however, are frustrated by a trend away from collegiality between faculty and administrators and a consequent diminishing of mediation and upsurge in law suits. As one delegate put it: "We used to be able to go in to the administration and shame them into certain things. Now, it's 'Go get a lawyer.'" It may be that in the absence of generally accepted moral and ethical values, a society falls back on rules, regulations, and laws. The letter of the law overrides the spirit.
In this vein, I was surprised to hear an analogy drawn between AAUP and a religion. In his opening remarks, Jonathan Knight pointed out that what distinguishes AAUP from other professional organizations is that AAUP fights for non-members on principles AAUP has itself developed. Like religions, he said, AAUP has tenets and beliefs and is known by them. Of course, unlike religions, AAUP principles are not a matter of faith, but of reason. However, taking up this analogy, one participant pointed out, “As long as I believe in the church, I'll subscribe to the dogma. But if I've left the church, I won't."
In other words, while most of academia is still "in the church," there is a real problem emerging between those who support AAUP principles, tenets, and beliefs and those—faculty and administrators alike—who do not. The "belief gap" is growing.
What to do? Probably the same thing that religions and other principled groups in our society are doing: witness, profess, educate, and recruit.
Don Wagner asserted that people who limit Committee A work to reacting to colleagues in distress are missing the opportunity to promote a more comprehensive definition of its work. This would include distributing Redbooks to new administrators, examining institutional regulations to see if they are in accordance with AAUP principles, and holding general discussions on issues such as tenure and academic freedom.
Returning to the religion analogy, I heard one participant observe that many colleagues feel that AAUP is like a religion in that it is a hierarchy, in which not everyone gets an equal hearing. This observation is specifically true in the case of people whose grievances are not taken up by the national office. It is also true of other groups, including junior professors, women, and other socially defined minorities. In the education process, it will become imperative to convince these people that they have a stake in AAUP. This too is Committee A work.
Perhaps one way of attracting new members is to address broader concerns in addition to specific grievance cases. One participant insisted that the problem of academic freedom and tenure was related to problems of governance. If we fail to address this issue, "the collegial ideal will soon be down the tubes." This observation on the importance of governance reminded me of an article which was part of the packet sent to state conference representatives before the Washington, D.C., meeting: the 50th anniversary address by Walter Metzger (professor of history, Columbia).
The article pointed to three concerns at the origin of the Association: quality of the professoriate (which involves self-improvement and academic ethics), authority (which implies self-government), and security (the defense of academic freedom).
Metzger shows the development of the security concern—which is what we still associate with Committee A activities—and observes that due to various historical accidents, initiatives were closed off in the other two areas of quality and authority. Thirty years later, it seems to me that all three of these areas are up for grabs. Perhaps this time, we need to relate academic freedom concerns more closely with questions of monitoring our own quality as well as our academic governance.
Some of Metzger's concluding words, while dated in context, are still true in principle today:
We can be sure that the question of allocation of resources between cyclotrons and classrooms, the question of the uses of subfaculties, the question of sanctions for professional impropriety will be answered, if not by the organized professors, then by those who dealt with them before—the possessors of material and legal power. (Academe, Summer 1965, p. 237)
These are concerns that should affect all professors.
The workshop in Committee A standards accomplished
three things, in my opinion. First, it clarified the relationship of the state conference
to the national committee, making clear the importance of working closely together in
order to speak with a consistent, credible voice. Secondly, it was an important step to
the creation of a state Committee A handbook. Don Wagner has already made a positive start
by contributing a checklist and other general observations on the role of Committee A.
Also, the case studies (for which we had little time at this workshop) could provide
practical training and probably should be included in a handbook or in adjoining
materials. Finally, the discussion pointed to larger concerns to be addressed by the state
conferences in the context of state Committee A work. Academic freedom is indeed related
to issues of standards and governance, areas in which decisions are being made right now.
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The following recommendations were developed by Professor Donald Wagner (political science, West Georgia College), former executive secretary of the Georgia Conference of the AAUP. They constitute a checklist of considerations for chapter and conference leaders engaged in Committee A work.
1. Always be courteous, professional, helpful to the extent you can. Listen and ask questions. Do not argue.
2. Take your time. Never allow yourself to be rushed. Make no commitments before checking with the Washington Committee A staff (1-800-424-2973).
3. Do not assume that the faculty member is always right.
4. Do not assume that AAUP can always help faculty members who have been mistreated.
5. Remember that AAUP defends policies and principles, not individuals. Individual cases matter to AAUP only insofar as they implicate the policies we recommend. Our policies do not cover all conceivable circumstances.
6. For your own protection say at some point in the conversation, “I am not an attorney and what advice I may give you is not legal advice.”
7. Keep a record of your telephone conversations, correspondence, etc., on each complaint.
8. Advise any faculty member who calls you to develop and maintain a chronological account of what happened to him/her. The account should include as much detail as possible, e. g., all relevant correspondence, telephone calls/meetings, witnesses, etc. Advise the person to document to the extent possible his/her complaint/grievance.
9. Has the person exhausted remedies of redress at the campus? What remedies are available? Do they accord with what AAUP recommends? Find out. Ask for copies of institutional regulations.
10. If you are too busy to attend to the faculty member’s concerns, or are the least bit uncertain about the issues, have the faculty member call 1-800-424-2973 and let the Washington staff handle the matter.
11. Maintain a list of attorneys in your state who are familiar with higher education law. (It will not be a long list. Be sure to indicate that these are referrals, not recommendations, since you may not be personally acquainted with all the lawyers whose names are in your files.) Find law school faculty who might help in legal matters.
12. Finally, remember that we at the [chapter and]
conference level can assist the Washington staff; we must keep in mind, however, that they
speak for the Association. Do not hesitate to question them if you do not understand or
have doubt about what they say. In my experience they have invariably been able to defend
the positions they have taken regarding AAUP policies.
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From
the President
Warren Zemke
Pardon my paraphrase, but all is not quiet on the academic front. Nationwide, many AAUP colleagues are in the trenches fighting. Turmoil at Minnesota is just the closest, most publicized example. The surge in membership in Minnesota, and other select states, is causing national Committee O to consider reconfiguring districts used in elections to the National Council. (Currently Iowa is in District II, along with Illinois, Kansas, Minnesota, Missouri and Nebraska).
At the fall meeting of the Iowa Conference, Prof. Linda Fisher told us what constitutes a good sexual harassment policy (see lead article). Certainly, the issue of sexual harassment on campus won't go away quietly. Just look at recent issues of The Chronicle of Higher Education or Academe (e.g., Ann Franke's "Legal Watch" article or the review of Sexual Harassment on Campus: A Guide for Administrators, Faculty and Students in the November/Decem-ber 1996 issue). And our state newspapers continue to remind us of the problems associated with sexual harassment violations.
Yet the attack on tenure ranks at the top of the list of concerns. In Florida, the board of regents recently voted to conduct post-tenure reviews. The president of the University of North Carolina System asked the university to develop a post-tenure review plan by May 1997. The University of Texas System just adopted a post-tenure review policy. Need I remind you of the attempt by the board of regents at the University of Minnesota to alter the current tenure code?
In Iowa we can't wait around for the ax to fall. To update us on the seriousness of these attacks on tenure, national AAUP president Jim Perley is scheduled as keynote speaker for the Iowa Conference spring meeting at the University of Iowa. Put Saturday, April 5, on your calendar NOW and definitely plan to attend the spring meeting in Iowa City. All the details about the spring meeting will be forthcoming in our next newsletter.
Although most of the AAUP action in Iowa seems to take place during the spring and fall conference meetings, let me assure you some of our colleagues are very active throughout the year.
At the national level, Joanna Courteau (ISU) is a member of the National Council, C. William Heywood (emeritus, Cornell) is a member of Committee H on the History of the Association, and Greg Scholtz (Wartburg) is a member of Committee T on College and University Governance. In early September at the University of Michigan, Greg presented the invited paper "Shared Governance at the Small Liberal Arts College" at the AAUP national governance conference. Iowa Committee A member Ruth Caldwell (Luther) was the Iowa delegate to the Assembly of State Conferences-sponsored National Workshop on Committee A standards, held in Washington, D.C. (see article beginning on page 2).
For those of us in the trenches at the local level there is an upcoming opportunity in mid-April. In Chicago, April 18-20, there will be a Midwestern Regional Training Institute for chapter leaders, sponsored by the ASC and the Illinois Conference. This is a concentrated weekend of training in the nuts-and-bolts of how to make chapters work. Session topics will vary from building chapter effectiveness and recruitment to Committee A training.
It is imperative that chapters in Iowa send local
leaders to Chicago for this critical training opportunity. There will be some support from
the ASC for attendees in the way of travel and overnight lodging. It may also be possible
for the Iowa Conference to provide some support. Start thinking now about who from your
chapter should be at the Chicago training institute.
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Minnesota vote expected in February
University of Minnesota faculty are expected to vote on collective bargaining by the end of February, although an election date has not been set.
Staff member Jack Nightingale, based at AAUP's new office in UM's Coffman Memorial Union, continues to assist faculty with the organizing effort. Staff member Steve Finner will spend much of next week in Minnesota, working with faculty to set up a comprehensive telephone survey program in anticipation of the election. In addition, AAUP President James E. Perley will speak to UM faculty on Jan. 17.
AAUP President will address April 5 conference meeting in Iowa City
AAUP President James E Perley will be the featured speaker at the spring 1997 meeting of the Iowa Confer-ence of the AAUP, to be held in Iowa City on Saturday, April 5.
Perley, a professor of biology at the College of Wooster in Ohio, was re-elected in June to an unprecedented second term as AAUP’s chief elected officer.
In his second term, Perley has promised to work towards further “empowering” the membership. “Chapters and conferences must have the resources to become fully functional in all areas,” he wrote in his candidate position statement.
He also promised to address the issues of a
declining faculty role in institutional governance and the exploitation of part-time
faculty.
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